Nigel Farage has been in the news again (when isn’t he?), immediately giving birth to a new hashtag on twitter, #OstentatiousBreastfeeding, which seems to have proved quite popular. This follows an incident earlier this week when posh London hotel Claridges attracted considerable criticism from some quarters (and it must be said, support from others) for insisting that a breastfeeding woman place what looked like a large napkin or a small tablecloth over herself and her child, on account of its policy that breastfeeding mothers should cover up. Farage gave an interview on LBC radio, when he said:

“I’m not particularly bothered about it, but I know a lot of people do feel very uncomfortable, and look, this is just a matter of common sense, isn’t it? I think that, given that some people feel very embarrassed by it, it isn’t too difficult to breastfeed a baby in a way that’s not openly ostentatious.”

First off, it’s odd that he starts off saying he really isn’t that bothered by it, before then explaining why in fact he is bothered by it because it bothers other people and so it’s common sense to just not upset them. But the word “ostentatious” also seems odd. Why “ostentatious”? It suggests that, rather than merely being a convenient way to feed your child without having to (a) stop what you are doing and go home or (b) hide in a toilet or some other corner, away from whoever you happen to be with (be they your friends, your partner or possibly even your other children, should you have had the temerity to bring them out in public too), your act of breastfeeding is primarily a way of showing off to the world at large. Having said that, I suspect what he thinks of as “ostentatious” is in fact what I would consider just “not being ashamed”.

The arguments seem to have been polarised into two camps. On one side: breastfeeding is natural, it is good for children and therefore should be encouraged, people should get over it, we are not the Victorians, if people have a problem it’s their problem not the mother’s, we are not doing anyone any harm. The double standards of Page 3 have also been brought into the debate: If boobs are ok for public consumption (see what I did there?) when the purpose is titillation, why not for feeding babies? On the other side the argument seems to be: oh, we’re not actually offended as such – we’re not prudes you know; it’s a question of dignity, manners, propriety, discretion, etiquette, call it what you will but generally a preference for not inflicting what ought to be a private act on the eyes of polite society, in breach of established standards of behaviour.

But etiquette is not an immovable standard. Standards of behaviour change as society changes. Women have started to say “this breastfeeding lark is definitely a good thing for my child, as society keeps telling me, but I’m damned if I’m going to hide away from the rest of society while I do it”. I seem to remember with my children, breastfeeding taking half an hour to an hour in many cases. Doing it in private could make it very difficult to get out of the house at all. And having come out of the house (and in the process participating in society in an economically useful way by spending money in cafes etc) there’s a tendency to say “I’m damned if I’m going to be ashamed of breastfeeding, what with it being such an unfettered good, so why should I cover up? It’s not like I’m doing anyone any harm, or corrupting anyone’s morals.”

The last ditch argument (again, based on dignity or propriety) seems to be that some people just don’t like it, and mothers should, out of politeness, respect that, and be discreet. But most mothers are discreet, very few would see public breastfeeding as an evangelical act. (The exception to this rule seems to be the breastfeeding protests that tend to arise whenever a woman is asked to cover up while breastfeeding or, quite often, simply told to go elsewhere. The one outside Claridges later this week being a good example). But when the injunction to be discreet becomes more than just “try not to wave it in people’s faces more than necessary”, but more “cover up or go elsewhere”, we are back to the same, centuries-old problem, society telling women what to do with their bodies, for no good reason.

The inconvenience (if that’s what it is) suffered by the “etiquette” brigade in being reminded of what breasts are actually for, is nothing compared to the inconvenience of having to remain indoors for the first six months or more of your child’s life, or more fundamentally the indignity of being made to feel ashamed of your own motherhood when you do venture out in public, by being asked to make it less conspicuous, more invisible. As for the idea of putting a little cloth over the baby/boob area: you remember those little knitted Victorian ladies in large dresses that used to go over the toilet rolls in your grandmother’s house about 30 years ago? It’s like that. A pointless and anachronistic attempt to pretend that certain essential bodily functions don’t actually exist.

When I said earlier that standards inevitably “change”, I don’t mean “drop”. Society’s increasing tolerance for breastfeeding mothers is very much a change for the better in my book. And this is not just, as some have suggested, a view that holds good for the “North London liberal brigade”. A YouGov poll suggests most people in society agree with me, and that view holds good for people of all ages and political persuasions. Even The Times.

Also I can’t help but think there are conflicting standards of etiquette here. What about the very British attitudes of minding your own business, ignoring things that don’t really concern you, not making an undignified fuss? If I owned a cafe, I would have a policy that anyone making a fuss about things that should not concern them, like breastfeeding, should be required to wear a silly hat that is slightly too large, and covers their eyes.

All in the interests of propriety, you understand.

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With England’s hopes in the 2014 Fifa World Cup now dashed, does your law firm have a workplace policy to deal with the impact of the next major sporting event? Are you even aware of the dangers? Read on…

Absence management. The main impact of major sporting events is that your legally-qualified staff will inevitably want to take time out from their usual fee-earning work to compose banal and pointless client “updates” or tout themselves round the broadsheets and trade press as shameless rent-a-quotes in the belief that this will make your firm stand out. Client work will suffer, court and tribunal deadlines will be missed.

Social media. Managing social media use in the workplace is a challenge at the best of times, but around major sporting events, especially football matches, usage is likely to increase as your staff tweet ill-conceived puns, non-sequiturs and other tortuous and contrived links between football and employment law in an attempt to raise their profile. This unrestrained internet access can use up so much of your firm’s bandwidth that it may adversely impact legitimate business usage (i.e partners streaming matches to their desktop computers).

Pun and games. The over-exuberance that surrounds these events can lead staff to engage in flirtations that, with the benefit of hindsight, they may later regret. The main problem is their sudden and unexplained affection for terrible puns and strained metaphors. Law firms should blow the whistle on this nonsense and show it the redcard before it scores an inevitable own goal.

Sick and tired. So how will your law firm fare in the next round of sporting hoopla? How about starting off by regurgitating a Wimbledon-related piece about the benefits of workplace diversity, based rather flimsily on the premise that Andy Murray (a man!) is being coached by Amelie Mauresmo (a woman!). Even better, you can save yourself the bother of writing anything yourself by just tweeting a link to someone else’s article, but remember to add as many hashtags as you possibly can.

Common problems. Luckily, under new powers introduced this year, Acas can help. It has already written some guidance to help employers through the 2014 Commonwealth Games, making it much easier for law firms to pretend they’ve come up with these insights themselves.

Put a policy in place. Many law firms are now waking up to the dangers that major sporting events bring, and are adopting policies on how to manage them. Here’s my policy: “Ignore it and do some proper work”. And here’s some similar advice from @HRBullets: “Keep Calm and Carry on”.

This is a momentous decision in my view. It will lead to human rights arguments taking a much more prominent role in employment cases on religious freedom. Human rights arguments in this field have hitherto failed because the prevailing orthodoxy at Strasbourg was that, if your employer won’t let you manifest your faith at work you are free to go and manifest it elsewhere, even to the extent of getting another job with a more accommodating employer. As such, arguments based on article 9 of the ECHR have always taken a back seat to the far more useful law of indirect discrimination which is now set out in the Equality Act 2010. Indirect discrimination law says that if your employer’s practices put you and other people of your belief at a disadvantage, the employer must change its ways unless it can justify the practice in question by showing it is a proportionate means of achieving a legitimate aim.

This decision turns the tables, and makes human rights law stronger than indirect discrimination law (as currently interpreted by the courts). Under the Eweida ruling, if an employer prevents an employee manifesting their religious belief, the employer must justify it. You are “manifesting” your belief if there is “a sufficiently close and direct nexus between the act and the underlying belief”. Your actions do not have to be required or mandated by the religion in question. By way of contrast, in indirect discrimination cases the focus is not on the individual so much as the group. The law requires you to show a group disadvantage, In other words, that people sharing your belief are put at a particular disadvantage by the employer’s practices. Ms Eweida fell foul of this requirement in her case against BA. She was unable to show that any other Christians at BA felt disadvantaged by the dress code, and the Court commented that since Christians were not required to wear a cross (even though many of them do) there was no disadvantage on them as a group.

I have previously argued that the way the Court of Appeal assessed group disadvantage in Eweida was wrong. However, the ECtHR’s decision now calls into question the whole concept of group disadvantage as a gateway to the law’s protection. Now, arguably any interference with the way you manifest your own personal beliefs, regardless of whether anyone else feels the same way, triggers article 9 and the employer should be required to show justification.

I think we will have to wait and see what impact this has on UK law. There are really two alternatives. The first is that the government chooses to legislate to change the law and implement the ECtHR’s ruling. I have been wrong in my predictions before, but I’m going to risk it again and say that they won’t (despite the Prime Minister having suggested last summer that he would). Largely because it would go contrary to their current war on “red tape” but also because I think they would prefer to see what the courts do, and then blame the judges if it all goes wrong.

The second alternative is that judges will now attempt to interpret indirect discrimination law in a manner which is compatible with the ECHR’s ruling. As a public authority, courts and tribunals have a duty to do this under section 3 of the Human Rights Act 1998. Case law from the House of Lords gives judges the power to read extra wording into statutes if that is necessary in order to give effect to our international obligations under the ECHR as well as EU law, even if that changes the meaning of the UK statute ( Ghaidan v Godin-Mendoza). Arguably this is what they must now do in respect of the Equality Act. Quite how they will do it is another matter, but I am sure we can expect some creative arguments from counsel in an appropriate case some time soon.

Of course, if your employer is a public authority, they are themselves bound by the Human Rights Act, and you can sue them in the civil courts (but not the employment tribunals) for breach of your article 9 rights without even mentioning indirect discrimination. You couldn’t have done this before Eweida. (Or rather, you could, but you would have lost.)

Another interesting point about Eweida is that the ECHR has given the UK courts a rather heavy-handed steer as to how they ought to be looking at objective justification arguments in relation to dress codes. The Court of Appeal had, they said, put far too much emphasis on BA’s desire to project a corporate image, and far too little weight on the fact that BA allowed Muslims and Sikhs a certain amount of latitude over their dress. Although it was legitimate to want a corporate uniform, the court felt that the stipulation in relation to jewellery was hardly of “crucial importance”. In future, courts and tribunals will find themselves presented with arguments that where a disputed item of clothing or jewellery has religious significance, a ban on grounds of “corporate image” will not be justified if the item is discreet and could not detract from professional appearance or harm the brand (see Eweida, paragraph 94).

I’m not saying I agree with the way she has handled all this, nor with the “persecution of Christians” narrative with which she (and the religious groups that have funded her case) is now associated. But the EAT and the Court of Appeal made a hash job of deciding her case, and here’s why. Continue reading →

The government’s “shares for rights” idea has been widely reported over the last few weeks and its fair to say I haven’t read a great many articles in favour of it. Employee ownership, yes. The Nuttall review earlier this year was all in favour of the government encouraging greater employee ownership, producing some toolkits (off-the-shelf template documents etc) and simplifying some company law rules on share buybacks. Even a statutory right for employees to request shares has been mooted, although the government have put that on the back burner for at least three years.

However, nowhere in that review (or in the subsequent government call for evidence) was it suggested that employees be asked to give up their unfair dismissal and redundancy rights (plus others) in order to benefit from a financial stake in the business. This is something the Chancellor has put in at the last minute, to puff up his “deregulatory” credentials at the party conference.

Since then, the suggestion has been doing the rounds that this is “Beecroft by the back door”: in other words, an attempt to introduce Adrian Beecroft’s controversial idea of compensated no-fault dismissal, whereby employers can simply choose to dismiss their employees for a one-off not very big payment, with no comeback.

Lest anyone should think this is mere scaremongering, I have set out below a practical guide to assist Beecroft wannabes to hire new staff with no strings attached. Continue reading →

Amid the flurry of employment law announcements made by Vince Cable on Friday, Nick Clegg’s grand plan for workplace “protected conversations” was quietly laid to rest. To recap, this idea came out of the government’s (or was it the CBI’s?) fear that employers were basically letting poor performers and the over 65s carry on in their jobs too long because managers were scared of saying anything to them, for fear of being taken to a tribunal. Nick Clegg wanted to facilitate managers having a “frank discussion” with employees about workplace matters, specifically about poor performance or retirement, without it leading to litigation.

The idea initially received what I might generously call “mixed reviews”. A few people liked it, but by and large most of the stuff I read was from people who thought it was a bully’s charter, full of holes and generally a terrible idea for both employers and employees; a view I share wholeheartedly. Somehow along the way, the idea has now morphed into something very different. Continue reading →

A bit off my normal topics today. After the excitement of the Olympics, which I have to say the BBC covered excellently from start to finish, I was looking forward to seeing what C4 would make of the Paralympics. Continue reading →